Mystery Man: Right-to-Die Case Does Little to Reveal Roberts

If a loved one was suffering in the hospital and expressed the wish to die, who would you want to listen to, your doctor or your government?

This is a question that Senator Dianne Feinstein (D- Ca.) asked then-Supreme Court nominee John Roberts during his confirmation hearings.

Roberts answered that he would honor his loved one’s feelings, but stopped short of saying what he would do in that situation. He did not give his legal opinion about the government dictating life and death decisions or, the right to privacy.

When questioned further about the assisted suicide issue, he indirectly challenged the constitutionality of an Oregon state law that allows patients to terminate their lives. However, he did not come out and say the law was unconstitutional.

We still don’t really know Chief Justice Robert’s view of right-to-die legislation since the recently decided Gonzales v. Oregon had more to do with the powers of the Attorney General than the constitutionality of Oregon’s law.

Oregon’s unique law

In 1997, Oregon passed The Oregon Death with Dignity Act, which allows doctors to prescribe, but not administer, a lethal does of prescription drugs to terminally ill patients. The patient must be able to make health care decisions for herself and two physicians must agree that the patient has six months or less to live.

In 2001, Attorney General John Ashcroft issued a directive that warned physicians against assisting in patient suicides with the consequence of criminal penalties and license suspension. The Bush administration’s philosophy behind this policy was that assisted suicides served no legitimate medical purpose.

On January 17, 2006, The Supreme Court decided 6-3 that Ashcroft exceeded his authority and that Oregon law supersedes federal power to regulate physicians. Justices Sandra Day O’Connor, John Paul Stevens, David Souter, Ruth Bader Ginsberg and Stephen Breyer made up the majority opinion that states should have the authority to define their doctors’ medical practices. Typically, upholding states’ rights is considered a "conservative" cause, but federalism is often honored and cited by people of all political persuasions.

Justice Anthony Kennedy agreed with the majority but wrote a separate opinion that the federal government has the right to regulate prescriptions, but only to prevent doctors from illegal drug dealing.

The dissenters

Justices Antonin Scalia, Clarence Thomas and Chief Justice Roberts dissented, agreeing with the Bush administration that assisted suicide has no medical purpose. Scalia and Thomas wrote their own opinions, with Scalia saying that "virtually every medical authority from Hippocrates to the current American Medical Association confirms that assisting suicide has seldom or never been viewed" as legitimate. Thomas wrote that the decision contradicted a previous Supreme Court ruling that the federal government had the right to restrict medical marijuana. Roberts did not write his own opinion.

Do we know more about Roberts?

Being that Roberts voted with Scalia and Thomas, we know a bit more about him, but without a written opinion, it is hard to know his legal rationale. So, in many ways we know as little as we did when Roberts was questioned by the Senate Judiciary Committee and avoided hypothesizing how he would rule in right-to-die cases.

Because this case was not about whether assisted suicide is constitutional, but rather federal authority to regulate doctors and medicines, we still do not know where Roberts stands on the Constitution and privacy.

Your input matters

Should the confirmation process require nominees to say more about how they understand the laws that apply to certain issues, such as right-to-die cases? Do you agree with the Supreme Court ruling in this case? Where should the government intervene and what should it stay out of? Should states have the power to make their own laws about assisted suicide?

Your representatives in Congress DO care what you think. Especially now -- 2006 is an election year and many representatives will be looking to reconnect with their constituents. Let your congressmen and women know what you think! Give your senators a piece of your mind! To find your reps, click here.

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Posted on: 1/20/2006